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Inconsistent Testimony Not Sufficient to Preclude Summary Judgment for Employer Defendant

Court: Court of Appeal of Louisiana, Fourth Circuit

In this fact-specific case, the plaintiff alleged the decedent Joyce Allen was exposed to asbestos through her husband, Odell Allen, who worked as a longshoreman and freight handler for various employers on the New Orleans riverfront from the 1960s to the 1980s. Defendant Ports America filed a motion for summary judgment, asserting there was no evidence Allen was exposed to asbestos while employed by Ports America. In support of its motion, Ports America submitted depositions of its corporate representatives in unrelated asbestos cases, as well as Allen’s deposition testimony both from this case and from an unrelated matter. In those depositions, Allen initially stated he had no personal knowledge of handling asbestos cargo. However, in a later deposition, Allen contradicted his prior statements, stating he did move asbestos cargo for Ports America. Ports America now argues that Allen’s contradictory statements are insufficient to rebut the evidence submitted in support of the motion for summary judgment, and insufficient to create genuine issues of material fact.

In their opposition to the motion for summary judgment, the plaintiffs argued at Allen’s deposition testimony that he handled dusty sacks of asbestos while employed by Ports America’s predecessor, creating genuine issues of material fact as to whether Allen was exposed to asbestos while working for Ports America. The matter was argued, and the trial court granted the motion for summary judgment, finding that the evidence submitted by plaintiffs was insufficient to create an issue of fact precluding summary judgment. Plaintiffs timely appealed.

The Court of Appeals considered the applicable legal standard for a motion for summary judgment, as well as the standard of proof and causation in asbestos cases: “To prove liability of a manufacturer or professional vendor of an asbestos-containing product, the plaintiff must show “he had sufficient exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” Rando v. Anco Insulations, Inc., 2008-1163, 2008-1169, p. 35 (La. 5/22/09), 16 So.3d 1065, 1091 (internal citations omitted). The plaintiff must prove, by a preponderance of the evidence that: (1) his exposure to the defendant’s asbestos product was significant; and (2) that this exposure caused, or was a substantial factor in bringing about, his asbestos-related disease. Robertson v. Doug Ashy Bldg. Materials, Inc., 10-1551, p. 19 (La. App. 1 Cir. 10/4/11), 77 So.3d 360, 372 (citing Rando, 08-1163, 2008-1169, p. 38, 16 So.3d at 1092).

In this appeal, the plaintiffs asserted that the trial court erred in granting summary judgment based on an impermissible credibility determination as to the testimony by Allen, when that evidence created a genuine issue of material fact as to whether Allen was exposed to asbestos while employed by Ports America. In response, Ports America argued the only evidence offered in opposition to its motion for summary judgment was Allen’s July 2021 deposition, which contradicted both his prior deposition and his subsequent deposition. Thus, Ports America argued that Allen’s inconsistent testimony, alone, is insufficient to create a fact issue precluding summary judgment.

In support of this position, Ports America cites Steib v. Lamorak Ins. Co., 20-0424 (La. App. 4 Cir. 2/3/21), __ So.3d __, 2021 WL 503240, writ denied 21-00453 (La. 6/8/21), 317 So.3d 326. In Steib, the plaintiffs appealed the granting of summary judgment in favor of two defendants, Parsons Government Services Inc. and Marathon Petroleum Company LP. The narrow issue presented was whether a genuine issue of material fact existed regarding Steib’s exposure to asbestos while employed by Parsons during the construction of the Marathon refinery. Parsons and Marathon based the motions for summary judgment on the plaintiffs’ failure to establish causation, i.e., the inability to establish that Steib was exposed to asbestos while employed by Parsons while working at Marathon. In affirming the granting of the motions for summary judgment, the court held that ‘credibility calls’ cannot be made in ruling on such a motion; however, the court is free to consider inconsistent deposition testimony when determining whether there exists triable issues of fact.

In the matter at hand, the plaintiffs maintained that Allen’s deposition testimony was not internally inconsistent, but rather Allen’s recollection was refreshed after reviewing relevant documents. Plaintiffs argued that this evidence is sufficient to create a genuine issue of material fact precluding summary judgment in this instance. However, the court held that, in making this argument, the plaintiffs failed to address the fact that in Allen’s subsequent September 2021 deposition, he again reiterated that he could not say what type of cargo he handled for Ports America. Therefore, Allen’s deposition testimony was in fact internally inconsistent.

In line with the requirements set forth in La. C.C.P. art. 966(D)(2) and the court’s pronouncement in Steib, the court held that such evidence, standing alone, was insufficient to establish the existence of a material issue of fact in this matter. The court, therefore, affirmed the trial court’s granting of summary judgment in favor of Ports America.

Read the full decision here.